Sr. Carol Keehan & The HHS Mandate

by Michael Sean Winters

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I can think of no one who brings greater moral authority to the debate over the HHS mandate than Sr. Carol Keehan, President of the Catholic Health Association. In the first place, Sr. Carol represents major stakeholders in the debate, the many Catholic hospitals nationwide that care for one sixth of all Americans: If anyone can speak authoritatively about what it means to carry on the healing ministry of the Lord Jesus in America today, it is she and the people she represents.

Second, Sr. Carol not only advocated for the passage of the Affordable Care Act (ACA), it is doubtful that the ACA would have passed without her support. Third, throughout the debate over the mandate, Sr. Carol has never spoken the language of ultimatums or jeremiads but has, instead, consistently adopted the stance of a casuist, trying to find a solution, trying to make things work.

All those who have been interested in using the issue of the HHS mandate as a cudgel with which to beat up on the Obama administration have found in Sr. Carol a formidable challenge: If she can be reasonable, if she can avoid the pitfall of assuming the worst about people’s motives, if she can seek a solution, why can’t they?. All those who have been willing to trash the Catholic bishops and carry water for the Obama White House have likewise found in Sr. Carol a formidable challenge: If she has raised alarms about the mandate itself, and the implications of the mandate for the future of Catholic ministries, why don’t they?

Consequently, when Sr. Carol and the CHA published its “comment” on the “Advanced Notice of Proposed Rulemaking” which was forwarded to HHS yesterday, everyone who is serious, everyone who is morally serious, about the issues involved, everyone who is intent on preserving religious liberty and preserving increased access to health care, everyone who has not drunk the Kool-Aid being proffered by either partisan camp, everyone has to take notice. And, the conclusion of the CHA could not be more clearly stated:

Accordingly, for the reasons set forth below, we continue to believe that it is imperative for the Administration to abandon the narrow definition of “religious employer” and instead use an expanded definition to exempt from the contraceptive mandate not only churches, but also Catholic hospitals, health care organizations and other ministries of the Church. If the government continues to pursue the policy that all employees should have access to contraceptive services, then it should find a way to provide and pay for these services directly without requiring any direct or indirect involvement of “religious employers,” as broadly defined.

The strength of this conclusion resides in the fact that CHA did not dismiss the efforts by the administration to reach an accommodation with religious employers. The fact is that the accommodations proposed so far have been found unworkable. A different approach is needed, and the CHA suggests such an approach: Adopt a broader exemption for religious employers and find a different vehicle for achieving the administration’s aim of expanded, indeed universal, access to free contraceptive services.

“In a comment period, you give your best advice as to what will fix the problem completely,” Sr. Carol told me in an exclusive interview by phone last evening. Sr. Carol said that “we continue to have conversations with the administration” about the HHS mandate.” Some news reports suggest that the CHA has switched its position, noting that the organization did not reject the earlier accommodations out of hand when they were announced in February and March. Such news reports are not accurate: “We’ve always said this needs to be fixed,” Keehan told NCR. She added, “We remain as supportive as ever of the ACA.”

Here is a decisive moment, especially for those of us who have been largely supportive of the Obama administration, and especially of the ACA. A few weeks ago, when several Catholic organizations filed suit against the HHS mandate, some denounced the suits and questioned the motives of Fr. John Jenkins and Cardinal Donald Wuerl and others. Now, the question must be posed to them: Do you really, really think that Sr. Carol’s conclusion that the accommodations are unworkable can be dismissed or ignored?

Professor Stephen Schneck, of Catholic University’s Institute for Policy Research & Catholics Studies, quickly answered that question in the negative and sided with CHA. “Morally, the distance that the accommodations offered to conscience concerns for religious institutions such as hospitals, charities, and universities was theoretically sufficient,” Schneck wrote in a statement. “I supported the accommodations initially for that reason. However, in recent weeks it's become clear that the practical difficulties of maintaining that distance were far too onerous for the accommodations to work.”

Like Keehan, Schneck reaffirmed his support for the ACA. “I remain completely supportive of the intentions of the Affordable Care Act. But all religious institutions--including religious hospitals, charities, and universities--should be allowed complete exemption from its contraception mandate. Several workable fixes to this policy problem have been suggested by many who are friendly to the Affordable Care Act. I encourage the administration to consider them.” It is noteworthy as well that the USCCB, which opposed the passage of the ACA has never once called for its repeal but instead has advocated that any objectionable parts, like the HHS mandate, be fixed.

The comment period on the HHS rule is almost over. The White House must decide if it wants to continue this fight with the Catholic Church or not. Certainly, at the USCCB meeting in Atlanta, it became clear that most bishops agree with Cardinal Wuerl that removing the restrictive four-part definition of what constitutes a religious organization is the crux of the matter and that other issues, such as the conscience rights of individual employers, will require further theological reflection and catechesis to be effective. Cardinal Wuerl, speaking Wednesday at the USCCB meeting, stated that such reflection and catechesis about religious liberty must be seen as part of the New Evangelization. The young theologians of the Catholic Conversation Project will be discussing religious liberty at their meeting this summer. This is an important and very complicated issue, and some of the statements from the USCCB’s ad hoc committee and its members have seemed unalert to the complications. Cardinal Francis George of Chicago pointed out one of those complications this past week too when he noted that before we embrace St. Thomas More as a champion of conscience rights we should recall that he consigned many people to the flames for heresy. More importantly, Professor David Schindler’s editorial in Communio on the HHS mandate pointed out the difficulties in simply baptizing the First Amendment. John Courtney Murray referred to the “troubled waters” that remained unresolved by the Second Vatican Council’s Decree on Religious Liberty. The theological reflection and catechesis on religious liberty that Cardinal Wuerl called for must enter into those troubled waters.

To be clear and to repeat: The issue of conscience rights is important, even vital, and it is so on a range of issues. But, the immediate task is to rescind the restrictive four-part definition of what is, and is not, a religious employer for purposes of the law. Our ministries are as integral to our idea of what it is to be Catholic as is our worship. Our universities are as integral to our ideas about the relationship of faith and reason as is our understanding that faith must issue in works. As Catholics, we should be united in our hostility to the ideas, contested since the time of the Reformation, that good works are insignificant and reason is an unsuitable partner for faith. Otherwise, we will have to submit to ideas about the nature of religion that are unsupportable theologically. It is this simple. If the four-part definition stays, the Obama administration has no one to blame but itself for the consequences and shame on those Catholics who stick with the administration and thumb their noses at CHA. If the four-part definition goes away and the administration takes up the solutions suggested by CHA in its comment, the country can have an important political debate about the value of the ACA and the Church can turn her mind and heart to the task of developing our own doctrine on conscience and religious liberty.

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